Madhya Pradesh High Court
Paras vs Chaitanya Kashyap And 3 Ors. on 5 January, 2015
-: 1 :- Election Petition No.18 of 2014.
HIGH COURT OF MADHYA PRADESH, JABALPUR
BENCH AT INDORE
(SINGLE BENCH)
( HON'BLE SHRI JUSTICE JARAT KUMAR JAIN )
ELECTION PETITION No.18 OF 2014
Paras S/o Shantilal Saklecha
V E R S U S
Chaitanya Kashyap and others
******
Shri Rohit Mangal, learned Counsel for the petitioner.
Shri V.K.Jain, learned counsel for the Respondent No.1.
Smt.Archana Kher, learned counsel for the Respondent No.4.
****** O R D E R (Passed on this 5th day of January, 2015) THIS order shall govern disposal of IA No. 6731/2014, i.e. an application under Order VII Rule 11 r/w Section 151 of the Code of Civil Procedure (for brevity the Code), for rejection of election petition inter alia on the ground of nondisclosure of cause of action or a triable issue.
[2] Assembly elections of State of Madhya Pradesh held on 25.11.2013, in the election, Petitioner and Respondent no.4 (Dr. Arun Purohit) were in a frey as independent candidate whereas the Respondent no.1 was the official candidate of Bhartiya Janta Party. The election results were declared on 8.12.2013 and the respondent no.1 was declared elected. In this petition, election of Respondent No.1 to MP legislative assembly constituency no. 220 Ratlam City
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(general) has been challenged on the grounds that (i) Respondent no.1 has furnished incorrect information in regard to his residential address and (ii) has concealed the fact in regard to pendency of criminal case in nomination form; and (iii) he committed corrupt practices by publishing a false statement of fact in newspaper.
[3] The respondent no.1 has filed an application under Order VII Rule 11 r/w section 151 of Code for rejection of election petition on two grounds: (i) nondisclosure of cause of action or a triable issue in the petition and (ii) material facts and full particulars in regard to corrupt practices are missing. To clarify the grounds it is stated that the respondent no.1 has neither made any false declaration nor has concealed anything while submitting his nomination form. Respondent no. 4 was an independent candidate in the election and there is no averment in the petition that respondent no.4 had published the advertisement in the newspaper at the instance of respondent no.1. However the publication was not false therefore it does not fall within the definition of corrupt practices. Thus from a bare perusal of the pleadings made in the petition and the documents filed alongwith the petition, it is clear that the respondent no.1 has neither guilty for non compliance of any rules or orders made under the Representation of the People Act 1951 (herein after "Act") nor he has committed any corrupt practices. Therefore, the petition does not disclose any cause of action and make out any ground to set aside the election of respondent No.1. Hence, the petition deserves to be dismissed at the threshold.
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[4] In the reply of the application, the petitioner stated
that he has clearly and specifically pleaded the material facts regarding the corrupt practices committed by Respondent no.1 and it is evident from the nomination form that respondent no.1 has furnished incorrect residential address and concealed the information in regard to pending criminal case. Thus he is guilty for false declaration and corrupt practices. It is further stated that it is settled principal of law that at the time of deciding the application under Order VII Rule 11 of Code, the Court is required to consider only the averments of election petition (Plaint) and documents. Whereas the Court cannot consider the reply of the petition and documents filed along with the reply. The grounds raised in the election petition are matter of fact and therefore it can be proved by evidence in the trial. Thus, the application deserves to be dismissed.
[5] In order to appraise the merits of rival contentions in a right perspective, it would be desirable to deal with the grounds raised in the application as one by one. Ground No.1 : [There is no cause of action or a triable issue in the petition.] [6] According to the Petitioner in the nomination form (Annexure P/5) respondent no.1 incorrectly mentioned that he is the resident of Vishaji Mansion Gali, M.G. Road Ratlam, whereas he is resident of 4th Floor, Hermes House, 78, Khan A.G. Khan Road, Worli seaface Mumbai, as shown
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in pan card (annexureP/1) and an abstract of details of company registered with the Registrar of Companies (AnnexureP/2). Thus he has furnished an incorrect information in the nomination form.
[7] According to the Respondent no.1, he has mentioned correct residential address in the nomination form (AnnexureP/5). He is a permanent resident of Ratlam, he owns movable and immovable properties at Ratlam and is also having a business at Ratlam. This fact is evident from the details of immovable properties and bank accounts shown in column no. 7 (a) and 7 (b) of the nomination form. That apart, the section 5 of the Act prescribes that a person is entitled to contest an election of the State Legislative Assembly if he is an elector for any Assembly Constituency in that State. In the present case the name of respondent no.1 is enrolled in 220 Ratlam City (General) M.P. State at serial No.248 in part No.149. Thus, he fulfilled the requisite qualification.
[8] After hearing learned counsel for the parties, I have gone through the record. In the partI of nomination form (AnnexureP/5) the candidate has to mention his full postal address. The respondent No.1 has mentioned his full postal address as Vishaji Mansion Gali, M.G.Road, Ratlam. In the AnnexureP/2 it is mentioned that respondent no.1 being a Managing Director of Kashyap Sweeteners Ltd is presently residing at 4th Floor, Hermes House, 78, Khan A.G. Khan Road, Worli seaface Mumbai. Section 5 of the Act provides that a person is entitled to contest an election of the
-: 5 :- Election Petition No.18 of 2014.
State Legislative Assembly if is an elector for any Assembly Constituency in that State. In the nomination form at serial no.2 of partI respondent no.1 has mentioned that his name is enrolled at serial no. 248 at Assembly Constituency No. 220, Ratlam City (General). This is an undisputed fact.
[9] It is nowhere prescribed that the candidate has to disclose his permanent and present residential address in the nomination form. It is evident from the details of immovable properties and details of Bank Accounts shown in serial No.7(a) and 7(b) of nomination form. That respondent No.1 is permanent resident of Ratlam. Thus, it is clear that the respondent no.1 has mentioned correct residential address in nomination form (AnnexureP/5).
[10] According to the petitioner, on 05.11.1988, crime no. 286/1988 registered at Police Station Ratlam u/s 420, 408 r/w 34 of IPC. Though the High Court while exercising jurisdiction u/s 482 of CrPC quashed the FIR on 12.4.1990 but the Hon'ble Apex Court by its order dated 6.8.1992 set aside the order of the High Court. Thus the respondent no.1 is still facing a criminal trial but he has not disclosed this fact in the nomination form. Learned counsel for the petitioner tried to impress that whenever an offence is registered at Police Station, in general sense it means a case before the Police Officer and upon information received by the Magistrate, it will be presumed that the concerned magistrate has taken the cognizance of the case. In the present matter the investigation is still pending against the respondent no.1 therefore he should have furnished this information in his
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nomination form AnnexureP/5 but he has concealed this fact. Thus he is guilty for noncompliance of rules and orders made under the Act. To buttress the contention reliance has been placed on the following precedents.
Meaning of a case defined in:
(i) P.V. Vijayaraghavan Vs CBI (1984 CrLJ 1277)
(ii) Bhimmappa Vs. Laxman (AIR 1970 Sc 1153)
(iii) J.C.Yadav Vs State of Haryana (1990 (2) SCC 189) Meaning of Cognizance defined in:
(i) State of West Bengal Vs Mohd. Khalid (1995(1) SCC 684)
(ii) Subramanian Swamy Vs Manmohan Singh (2012 (3) SCC 64) [11] On the other hand learned counsel for the respondent no.1 submitted that if any offence is registered at any police station, then it will not be treated as a case. In the nomination form the candidate has to furnish the information in regard to a case pending in the Court. A case is said to be instituted in a Court only when the Court takes cognizance of the offence. Undisputedly, no criminal case has been pending against the respondent no.1 in any Court. In support respondent No.1 has filed a letter dated 07.11.2013 of Superintendent of Police, Ratlam in which it is stated that closure report No.36 on 20.06.1989 has been submitted in regard to Crime No.286/88 for offence under Section 420, 408 registered at Police Station Audyogik Kshetra Ratlam
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and no investigation of any crime is pending and no criminal case is pending against respondent No.1. He submitted that learned counsel for petitioner cited many precedents without referring the facts of such case and the context in which such judgments were passed. Therefore, by no stretch of imagination an offence registered at Police Station in which closure report has been submitted, can be treated as a pending case. Thus, it is not required to furnish such information in nomination form. In the petition it is wrongly mentioned that respondent no.1 is facing trial of criminal case. The petitioner has not mentioned any number of criminal case and name of the Court in which the respondent no.1 is facing trial. Thus, the respondent no.1 has not concealed any fact in regard to pendency of any criminal case.
[12] I have considered the arguments of learned counsel of the parties. It would be useful to refer the serial 5 of PartA of the nomination form (AnnexureP/5), which is as under : "(5) I am/am not accused of any offence(s) punishable with imprisonment for two years or more in a pending case( s) in which a charge(s) has/have been framed by the court(s) of competent jurisdiction.
If the deponent is accused of any such offence(s) he shall furnish the following information:
(i) The following case (s) is/are pending against me in which charges have been framed by the court for an offence punishable with imprisonment for two years or more :
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A Case/First Information Report Not No./Nos. together with applicable complete details of concerned Police Station/ District State.
B Section(s) of the concerned Not Act(s) and short description of applicable the offence(s) for which charged C Name of the Court, Case No. Not and date of order taking applicable cognizance:
D Court(s) which framed the Not charge(s) applicable E Date(s) on which the charge(S) Not was/were framed applicable F Whether all or any of the Not proceeding(s) have been stayed applicable by any Court(s) of competent jurisdiction
(ii) The following case(s) is/are pending against me in which cognizance has been taken by the court [other than the cases mentioned in item (i) above]: A Name of the Court, Case No. Not and date of order taking / applicable cognizance:
B The details of cases where the Not court has taken cognizance, applicable section(s) of the Act(s) and description of the offence(s) for which cognizance taken C Details of Appeal(s) Not /Application(s) for revision (if applicable any) filed against the above order(s) [13] From the bare reading of the aforesaid serial no.5 it is clear that the candidate has to furnish the information in regard to a pending case or cases for any offence punishable with imprisonment for 2 years or more and in which Court has taken cognizance and framed charges.
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[14] Hon'ble Apex Court in the case of J.C.Yadav Vs. State of Haryana (1990) 2 SCC 189 held that the word 'case' in ordinary usage means 'event', 'happening', 'situation', 'circumstances'. The expression 'case' in legal sense means 'a case', 'suit' or 'proceeding in court or Tribunal'.
[15] Hon'ble Apex Court in the case of Asgar Ali Nazar Ali Singaporewalla Vs State of Bombay reported in AIR 1957 SC 503 relying upon the meaning of the word "pending" as defined in stroud's judicial dictionary, edn.3, Vol.3, Page 2141, in which it was mentioned that a legal proceeding will be deemed to be "pending" from the date of original cognizance until it is concluded, held that the test for case said to be pending in a court of justice is when any proceeding can be taken in it.
[16] With respect to the term "pending" the Code of Criminal Procedure 1973 in Chapter XIV specifically provides conditions requisite for initiation for proceedings which starts from cognizance of offences by Magistrates u/s 190 of the Cr.P.C. up till the prosecution provided in subsequent sections upto section 199 of the CrPC. Thus it is quiet clear that the proceeding is initiated on cognizance of any offence taken by the Magistrate and not earlier to it. In this regard, reference may be made to a decision of the Apex Court in the case of Devarapalli Lakshminarayan Reddy and others Vs. V.Narayana Reddy and Others reported in (1976) 3 SCC 252 in which it was specifically held that from the scheme of the CrPC, the content and the marginal
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heading of section 190 and the caption of chapter XIV under which section 190 to 199 occur, it is clear that a case can be said to be instituted in a Court only when a court takes cognizance of an offence alleged therein.
[17] With the aforesaid discussion, it is quiet apparent that a criminal case can be said to be pending and initiated only after cognizance has been taken for any offence by a Magistrate or charges have been framed therein and not before that. No document has been produced by the Petitioner to show that any cognizance had been taken or charges had been framed in the aforesaid offence registered at Police Station at Ratlam against Respondent No.1 prior to filing of nomination (AnnexureP/5). It is thus quiet apparent that at the time of filing of nomination paper along with required declaration, neither any cognizance was taken in that case nor any charges were framed therein and hence no case can be legally said to be pending against the respondent no.1 on that date. Hence, the respondent no.1 was not bound to mention any such case on the declaration required, especially when the said declaration did not require any information regarding filing of any FIR/complaint against the respondent no.1. Thus, I found no substance in the argument of learned Counsel for the petitioner that the respondent No.1 has concealed the fact in nomination form in regard to pendency of criminal case.
Ground No.2 :
[The petitioner has not pleaded the
-: 11 :- Election Petition No.18 of 2014.
material facts and has also failed to give full particulars of the alleged corrupt practices in the election petition.] [18] Learned Counsel for the respondent No.1 submitted that in paragraph 12 of the petition the averments were made in regard to false publication. But these averments are not fulfilling the requirement of Section 123 (4) of the Act and there is a total noncompliance of mandatory provisions contained in Section 83 (1) of the Act. Nowhere it is pleaded that the said publication was made at the instance of respondent No.1. The material facts are missing in the petition, therefore, the petition is liable to be rejected at threshold. In support of the arguments learned Counsel has placed reliance on the judgments of Apex Court in case of Anil Vasudev V/s. Naresh Kshali (2009) 9 SCC 310 and Laxmikant Bajpai V/s. Haji Yaqoob (2010) 4 SCC 81.
[19] It is further submitted that in the absence of specific averments that false publication was made at the instance of respondent No.1, it cannot be inferred that respondent No.1 committed corrupt practice. For this purpose learned Counsel for the respondent No.1 cited the judgment of Hon'ble Apex Court in the case of Joseph M. Puthussery Vs. T.S.John AIR 2011 SC 906.
[20] Learned Counsel for the respondent No.1 submitted that however there is absence of material facts in regard to false publication, even though the advertisement is mere reproduction of the news which has already been
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published by the print and electronic media and the contents of the advertisement are not false. Publication of reproduction of the matter is not comes within the definition of corrupt practice. For this purpose learned Counsel cited the judgment of Hon'ble Apex Court in the case of Joseph M. Puthussery (supra).
[21] On the other hand learned Counsel for the petitioner submitted that the pleadings are complete in all respects and the affidavit also fulfills the requirement of Section 83 (1) of the Act. In the petition and affidavit it has been specifically pleaded that false publication was made with the consent of respondent No.1. At this stage the Court cannot consider the correctness of allegations and evidence in support of averments by entering into merits of the case which would be permissible only at the stage of trial of the election petition. For this purpose learned Counsel has placed reliance on the decision of the Apex Court in the case of Virendranath Gautam V/s. Satpal Singh (2007) 3 SCC
617. [22] Now I have considered whether the material facts are averted in the petition.
[23] The expression material facts has neither been defined in the Act nor in the Code. Hon'ble Apex Court in the case of Laxmikant Bajpai (supra) after considering catena of judgment reached to the conclusion that it is a settled legal position that an election petition must clearly and unambiguously set out all the material facts which the
-: 13 :- Election Petition No.18 of 2014.
appellant is to rely upon during the trial and it must reveal a clear and complete picture of the circumstances and should disclose a definite cause of action. In the absence of above, an election petition can be summarily dismissed. To see whether material facts have been duly disclosed or whether a cause of action arises, we need to look at the averments and pleadings taken up by the party.
[24] According to the petitioner at the instance of respondent No.1, respondent No.4 has published a false advertisement in the newspaper. Thus, he has committed corrupt practice as defined in Section 123 (4) of the Act. The provisions of Section 123(4) of the Act which reads as under : "The publication by a candidate or his agent or by any other person with the consent of a candidate or his election agent, of any statement of fact which is false, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate or in relation to the candidature, or withdrawal, of any candidate, being a statement reasonably calculated to the prejudice the prospects of that candidate's election."
From perusal of the above provision, it is clear that if any publication is alleged to be a corrupt practice, the same must fulfill the following requirements : "1. Such publication must be made either by a candidate or his election agent.
2. If such publication is made by any other person, it must be made with the consent of a candidate or his election agent.
3. Publication must be false and the maker of such publication must believe it to be false or does not believe it to be true.
4. Such publication must be in relation to personal character or conduct or in relation to the candidature or withdrawal of any other candidate.
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5. Such publication must be reasonably calculated to prejudice the prospects of that candidate's election.
[25] Now it would be useful to refer averments made in para 12 of the petition in regard to corrupt practice which is as under : "On 24.11.2013, one Arun Purohit who was contesting the election as an "Independent Candidate" has published a false advertisement in the newspaper viz. "Nai Dunia" dated 24.11.2013 that the election of the petitioner held in 2008 is declared void by the High Court, when the judgment of the High Court is stayed by the Supreme Court. Copy of the order of Supreme Court is annexed and marked as Annexure P/9 to the petition. Thus, the respondent no.4 has published false news about the petitioner in the newspaper which has prejudiced the result of the election against the petitioner. The respondent no.4 subsequently withdrew his candidature and supported the respondent no.1 who as the candidate of "Bhartiya Janta Party" on 19.11.2013 in a public meeting of Chief Minister of M.P. At Do Batti Chouraha Ratlam. A complaint to that effect was made by the agent of petitioner to the Election Officer on 24.11.2013. Copy of the said complaint is annexed and marked as Annexure P/10 to the petition."
[26] Advertisement in question is as under : tkxks ---- ernkrkvks --- tkxks tgka ,d vksj --- 12 vizsy 2013 dks mPp U;k;ky; bankSj esa rRdkyhu fo/kk;d ikjl ldyspk ds fuokZpu dks ¿ 'kqU; À ?kksf"kr fd;k gS vkSj mPpre U;k;ky; esa izdj.k fopkjk/khu gS] ftl ij lquokbZ 3 fnlEcj 2013 dks gksuk gS A D;k vkidk er lkFkZd gksxk \ ogha nwljh vksj --- ns'k dh vFkZO;oLFkk dh cckZnh dh ftEesnkj dkaxzsl] Hkz"Vkpkj esa Mwch dsUnz ljdkj tks gj ekspsZ ij vlQy gS A D;k vkidk er lkFkZd gksxk \ ,d tkx:d ernkrk cudj vius er dk lnqi;ksx dj uxj o izns'k ds fodkl gsrq ;ksX; mEehnokj ds i{k esa ernku
-: 15 :- Election Petition No.18 of 2014.
dhft;s A rks lksfp;s ! /;ku ls lksfp;s !! fodkl ds fy, lPps gdnkj dks tukns'k nhft;s A vkidk 'kqHkfpard ¼QksVks½ MkW- v:.k iqjksfgr [27] From the aforesaid averments it is clear that there is no specific averment that such publication was made by respondent No.4 with the consent of respondent No.1 or his election agent. Respondent No.4 has published the advertisement and subsequently withdrew his candidature and supported the respondent No.1. On this basis inference cannot be drawn that the questioned advertisement was published with the consent of respondent No.1. For this purpose I would like to refer the judgment of Hon'ble apex Court in the case of Joseph M. Puthussery (supra) held as under : "It is wellsettled that to prove that the corrupt practice of a third person is attributable to a candidate under Section 123 of the Act, it must be shown that the candidate consented to the commission of such act. The finding that the appellant knew about such distribution because benefit of such distribution could only ensure to him, but he kept silent despite knowledge of such distribution, is nothing else but an unwarranted inference and surmise on the part of the court."
[28] Now it is to be seen whether questioned advertisement is false. As per the averments in the petition, the advertisement is false because in the advertisement it is mentioned that the election of the petitioner held in 2008 is declared void by the High Court but it is not mentioned that
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the judgment of the High Court is stayed by the Supreme Court. Whether nonmentioning of this fact amounts to false advertisement? There is no averment that the respondent No.4 having knowledge in regarding to stay order granted by Supreme Court, deliberately suppressed this fact in order to prejudice the prospects of the petitioner's election. In the advertisement it is mentioned that the election of the petitioner held in 2008 is declared void by the High Court and the matter is pending before Supreme Court for hearing on 3rd December, 2013.
[29] A bare reading of advertisement it is clear that the advertisement does not contain full facts, but it cannot be said that the advertisement is false.
[30] Accordingly in the petition, the petitioner has utterly failed to fulfil the statutorily mandatory requirements while pleading relating to the corrupt practice. Even the material facts as to the consent of respondent No.1 or his election agent to the commission of alleged corrupt practice have not been pleaded at all. Apparently, the petitioner has not been able to point out as to who was involved in the corrupt practices. As aforesaid the advertisement is not false. Thus all the ingredients of corrupt practices are not made out.
[31] Accordingly, the petition does not disclose cause of action or a triable issue and the material facts in regard to alleged corrupt practices are also missing.
[32] It is settled proposition of law that the object of
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Order VII Rule 11 of the Code is to ensure that meaningless litigation, which is otherwise bound to prove abortive, should not be permitted to occupy the judicial time of the courts. If that is so in matters pertaining to ordinary civil litigation, it must apply with greater vigour in election matters where the pendency of an election petition is likely to inhibit the elected representative of the people in the discharge of his public duties for which the electorate have reposed confidence in him.
[33] Thus the petition deserves to be rejected on both the grounds as no issue can be raised for trial in absence of complete, precise and specific pleadings in respect of alleged corrupt practices.
[34] In the result, the petition stands rejected under Order VII Rule 11 (a) of the Code for want of any cause of action. The party shall bear their own costs.
[35] A copy of this order be forwarded to the Election Commission as well as to the Speaker of the State Legislative Assembly.
[JARAT KUMAR JAIN] J U D G E ns.